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Legal Implications of NATO's Armed Intervention in Kosovo

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Legal Implications of NATO's Armed Intervention in Kosovo XJ[II Legal Implications of NATO's Armed Intervention in Kosovo Ved P. Nanda HE MILITARY INTERVENTION by the nineteen,member North Atlantic T Treaty Organization (NATO) in Kosovo, a province of Serbia in the Federal Republic of Yugoslavia, was the first ofits kind undertaken by the alli, ance. Under the 1949 North Atlantic Treaty,l NATO was formed as are, gional security organization. With its mission to act in a defensive capacity to protect its members from external aggression, under the treaty the parties spe, cifically agreed that an armed attack against one or more of them in Europe or North America shall be considered an attack against them all and consequently ... if such an armed attack occurs, each of them, in exercise of the right of individual or collective self,defense recognized by Article 51 of the Charter of the United Nations, will assist the Party or Parties so attacked by taking forthwith, individually and in concert with the other Parties, such action as it deems necessary, including the use of armed force, to restore and maintain the security of the North Atlantic area.2 Thus, the intervention was arguably beyond NATO's intended mission. Equally important, by unilaterally intervening in Kosovo, NATO bypassed the United Nations. Its use of force clearly failed the test of strict compliance with Legal Implications of NATO's Armed Intervention in Kosovo the constraints of the UN Charter,3 for it did not seek prior authorization of the Security Council to use force. Although the UN eventually assumed an impor~ tant role in shaping the future of Kosovo, it was invited to perform that task only after the end of the conflict.4 I concede that it is too early to write a definitive commentary on the legal implications of this intervention. Some tentative conclusions can, however, be reached even at this time, which is a couple of months after Slobodan Milosevic's acceptance of NATO's terms to end its air operations against Yu~ goslavia. These conclusions form the subject of this paper. In the next section, I relate pertinent aspects of the armed conflict in Kosovo to provide the context for the discussion that follows on the role of the United Nations in the conflict. It is undoubtedly a laudable goal that the world community should effec~ tively respond to heinous crimes such as genocide in Rwanda and ethnic cleansing, forced expulsions, and egregious violations of human rights in Bosnia and Kosovo. But after NATO's intervention in Kosovo, the nature of the response to such deprivations and the kind of precedent it sets are valid questions because of their implications. Air Operations by NATO and the Kosovo Peace Accord Context. Arguably, the roots of the ethnic conflict in Kosovo go back hundreds of years. 5 Although as a province of the Ottoman Empire Kosovo was ceded to Serbia after Turkey's defeat in the Balkan Wars of 1912-1913, the area is regarded by Serbs as the cradle of their civilization, their cultural birthplace. It was at the Battle ofKosovo in 1389 that the Serbs were defeated and ever since they have painfully remembered the date. Also, many of their monasteries, churches, and sacred places are in Kosovo. The discussion here will, however, be confined to more recent events. A de~ cade ago, in 1988-1989, Yugoslavia and Serbia made constitutional changes under which the special autonomy enjoyed by the Autonomous Province of Kosovo under the 1974 constitution was revoked. That was the beginning of Milosevic's repressive policies in Kosovo which eventually led to the current crisis. During 1998, violence spread with intensified attacks by ethnic Albanian re~ bels on Serbian military and police forces and a crackdown by these forces, "re~ sult[ing] in the deaths of over 1,500 Kosovar Albanians and forc[ing] 400,000 people from their homes."6 Consequently, the concern grew that the violence might spread into neighboring Macedonia and also draw Albania into the con~ flict, destabilizing the region. In May-June 1998, the North Atlantic Council 314 VedNanda held meetings on the Kosovo crisis at foreign and defense ministerial levels and began considering a large number of possible military options.7 Earlier, the so,called "contact group," composed of France, Germany, Italy, Russia, the United Kingdom, and the United States, had begun attempts to find a diplomatic solution to the conflict. In March 1998 the group proposed a comprehensive arms embargo on the Federal Republic of Yugoslavia, including Kosovo.8 Also in March 1998, the Organization for Security and Cooperation in Europe (OSCE) convened a special session of its Permanent Council to assess the deteriorating situation.9 After considering the reports of the contact group and the OSCE, the UN Security Council, acting under Chapter VII of the Charter, resolved on March 31 to impose an arms embargo on the Federal Republic of Yugoslavia, including Kosovo.lO The Council also expressed "its support for an enhanced status for Kosovo which would include a substantially greater degree of autonomy and meaningful self,administration," and accepted the contact group's proposal that the Kosovo problem should be solved on the principle of the territorial in' tegrity of Yugoslavia. 11 Furthermore, the Council condemned "the use of excessive force by Serbian police forces against civilians'and peaceful demonstrators in Kosovo, as well as all acts of terrorism by the Kosovo Liberation Army or any other group or indi, vidual and all external support for terrorist activity in Kosovo, including fi, nance, arms and training,"I2 and threatened additional measures in case of the "failure to make constructive progress towards the peaceful resolution of the situation in Kosovo."13 Yugoslavia, however, was insistent that under the UN Charter the Kosovo situation was a matter solely within its domestic jurisdic, tion.l4 Subsequently, on September 23, 1998, the Security Council, again acting under Chapter VII, adopted another resolution in light of the deteriorating hu, manitarian situation. IS It called upon the parties to cease hostilities and "enter immediately into a meaningful dialogue without preconditions and with inter, national involvement, and to a clear timetable, leading to an end of the crisis and to a negotiated political solution to the issue of Kosovo."I6 It demanded that Yugoslavia "enable effective and continuous international monitoring in Kosovo by the European Community Monitoring Mission and diplomatic mis, sions accredited to the [State]"I7 and facilitate "the safe return of refugees and displaced persons to their homes and allow free and unimpeded access for hu, manitarian organizations and supplies to Kosovo."I8 On October 13, the NATO Council authorized Activation Orders for air strikesI9 to be undertaken by NATO military forces within 96 hours as part of a 315 Legal Implications of NATO's Anned Intervention in Kosovo phased air campaign in Yugoslavia20 unless the parties agreed to implement the terms of Security Council Resolution 1199 of September 23. However, within the next three days successful diplomatic efforts resulted in Yugoslavia's agree, ment with the OSCE for the establishment of a verification mission in KosovoZI and another agreement between Yugoslavia and NATO providing for the establishment of an air verification mission over Kosovo to complement the OSCE verification mission.22 The United States also succeeded in diplo, matic negotiations under which Yugoslavia agreed on a framework for a politi, cal settlement of the conflict.23 Because of these developments and visits to Belgrade by NATO Secretary General Javier Solana, U.S. envoys Richard Holbrooke and Christopher Hill, and NATO Generals Claus Naumann and Wesley Clark, NATO called off the air strikes.24 Yugoslavia also agreed on limits on the number of Serbian forces in Kosovo and on the scope of their operations.25 Acting again under Chapter VII, on October 24 the Security Council adopted another resolution26 reiterating the terms of the two earlier resolu, tions, endorsing and supporting the verification agreements signed between Yugoslavia and the OSCE and NATO, respectively, and demanding, inter alia, that both the government of Yugoslavia and the Kosovo Albanians "comply fully and swiftly" with the terms of those resolutions and "cooperate fully" with the OSCE and NATO verification missions.27 A special NATO military task force was established to assist with emergency evacuation of Kosovo forces if they were put at risk by renewed conflict; it was situated in Macedonia. Subsequently, on November 12, the Secretary General reported to the Se, curity Council that the October agreements had "contributed towards defusing the immediate crisis situation in Kosovo and [had] created more favourable conditions for a political settlement. "28 In his report, the Secretary General ad, dressed the military, security, humanitarian and human rights situation in Kosovo, and envisaged that the UN's role in Kosovo, "will focus on humanitar, ian and human rights issues."Z9 Also through the Secretary General, the OSCE reported that its verification mission would be composed of up to 2,000 unarmed verifiers and among the mission's tasks would be "to supervise elections in Kosovo in order to ensure their openness and fairness."30 Similarly, the Secretary General of NATO noted in his October 27 letter to the UN Secretary General that the North At, lantic Council had decided to maintain the activation order for the limited air response on the understanding that execution would be subject to a further Council decision and 316 VedNanda assessment that the Federal Republic of Yugoslavia was not in substantial compliance with Secutity Council Resolution 1199 (1998) ... [and had] also decided to continue the present air activities as part of the phased air campaign) 1 The relatively optimistic picture presented by the UN Secretary General, however, did not live up to its promise.
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